holding that an accused must establish that his or her counsel was “actively representing divergent interests,” that the conflict was actual, not hypothetical, and that the conflict of interest “adversely affected his [or her] lawyer’s performance” in order to establish a constitutional deprivation
How later courts described this case
- holding that an accused must establish that his or her counsel was “actively representing divergent interests,” that the conflict was actual, not hypothetical, and that the conflict of interest “adversely affected his [or her] lawyer’s performance” in order to establish a constitutional deprivation
- explaining that "the [s]tate participate[s] in the denial of ... [t]he right to counsel guaranteed by the Sixth Amendment" when it "conduct[s] trials at which persons who face incarceration must defend themselves without adequate legal assistance"
- holding that “multiple representation does not violate the Sixth Amendment unless it gives rise to a conflict of interest” and “a reviewing court cannot presume that the possibility for conflict has resulted in ineffective assistance of counsel”
- holding that the constitutional right to effective assistance of counsel in criminal cases is based on the constitutional right to assistance of counsel in criminal cases and applies equally to court-appointed lawyers and retained lawyers
Written by the judges who cited it.
Later courts went against this
Questioned by Robert Lee Holleman v. Zettie Cotton, 301 F.3d 737 (2002)
Court recently has cast doubt on whether the principle of Cuyler v. Sullivan should be applied to cases where trial judges have failed to inquire into conflicts of interest in successive representation cases, see Mickens, — U.S. at -, 122 S.Ct. at 1245, even if Cuyler applied in the present case, Holleman cannot show prejudice with respect to his judicial inquiry claim.
Questioned by Edwards v. State, 393 So. 2d 597 (1981)
I am frank to acknowledge that Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), puts in doubt the continued validity of the above line of Florida decisions.
Distinguished
Distinguished by Dassey v. Dittmann, 201 F. Supp. 3d 963 (2016)
Thus, Sullivan is inapplicable here.
Distinguished by Jones v. Workman, 98 F. Supp. 3d 1179 (2015)
Finally, Wood, like Sullivan, is easily distinguishable from Petitioner’s claim.
Distinguished by Steward v. Commonwealth, 2012 Ky. LEXIS 202 (2012)
However, since the Supreme Court’s opinion in Mickens, the Sixth Circuit has stated that the rule pronounced in Sullivan "is inapplicable to cases of successive representations.
Distinguished by State v. Severson, 147 Idaho 694 (2009)
Because Severson objected to the conflict at trial and is now challenging the court's alleged failure to conduct an adequate inquiry, Cuyler is inapplicable.
The opinion
Mr. Justice Marshall,
concurring in part and dissenting in part.
I agree that the Court of Appeals properly concluded that respondent’s lawyers had undertaken multiple representation, and that a conviction obtained when a defendant’s retained counsel provided ineffective assistance involves state action that may provide the basis for a writ of habeas corpus. Accordingly, I join Parts I, II, and III of the Court’s opinion.
I believe, however, that the potential for conflict of interest in representing multiple defendants is “so grave,” see ABA Project on Standards for Criminal Justice, Defense Function, Standard 4^3.5 (b) (App. Draft, 2d ed. 1979), that whenever two or more defendants are represented by the same attorney the trial judge must make a preliminary determination that the joint representation is the product of the defendants’ informed choice. I therefore agree with Mr. Justice Brennan that the trial court has a duty to inquire whether there is multiple representation, to warn defendants of the possible risks of such representation, and to ascertain that the representation is the result of the defendants’ informed choice. 1
I dissent from the Court’s formulation of the proper stand *355 ard for determining whether multiple representation has violated the defendant’s right to the effective assistance of counsel. The Court holds that in the absence of an objection at trial, the defendant must show “that an actual conflict of interest adversely affected his lawyer’s performance.” Ante, at 348. If the Court’s holding would require a defendant to demonstrate that his attorney’s trial performance differed from what it would have been if the defendant had been the attorney’s only client, I believe it is inconsistent with our previous cases. Such a test is not only unduly harsh, but incurably speculative as well.- The appropriate question under the Sixth Amendment is whether an actual, relevant conflict of interests existed during the proceedings. If it did, the conviction must be reversed. Since such a conflict was present in this case, I would affirm the judgment of the Court of Appeals. 2
Our cases make clear that every defendant has a constitutional right to “the assistance of an attorney unhindered by a conflict of interests.” Holloway v. Arkansas, 435 U. S. 475, 483, n. 5 (1978). “[T]he 'assistance of 'counsel’ guaranteed by the Sixth Amendment contemplates that such assistance be untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests.” Glasser v. United States, 315 U. S. 60, 70 (1942). If “[t]he possibility of the inconsistent interests of [the clients] was brought home to the court” by means of an objection at trial, id., at 71 , the court may not require joint representation. But if no objection was made at trial, the appro *356 priate inquiry is whether a conflict actually existed during the course of the representation.
Because it is the simultaneous representation of conflicting interests against which the Sixth Amendment protects a defendant, he need go no further than to show the existence of an actual conflict. 3 An actual conflict of interests negates the unimpaired loyalty a defendant is constitutionally entitled to expect and receive from his attorney.
Moreover, a showing that an actual conflict adversely af *357 fected counsel’s performance is not only unnecessary, 4 it is often an impossible task. As the Court emphasized in Holloway .
“[I]n a case of joint representation of conflicting interests the evil — it bears repeating — is in what the advocate finds himself compelled to refrain from doing .... It may be possible in some cases to identify from the record the prejudice resulting from an attorney’s failure to undertake certain trial tasks, but even with a record of the sentencing hearing available it would be difficult to judge intelligently the impact of a conflict on the attorney’s representation of a client. And to assess the impact of a conflict of interests on the attorney’s options, tactics, and decisions in plea negotiations would be virtually impossible.” 435 U. S., at 490-491 (emphasis in original).
Accordingly, in Holloway we emphatically rejected the suggestion that a defendant must show prejudice in order to be entitled to relief. For the same reasons, it would usually be futile to attempt to determine how counsel’s conduct would have been different if he had not been under conflicting duties.
In the present case Peruto’s testimony, if credited by the court, would be sufficient to make out a case of ineffective assistance by reason of a conflict of interests under even a *358 restrictive reading of the Court’s standard. In the usual case, however, we might expect the attorney to be unwilling to give such supportive testimony, thereby impugning his professional efforts. Moreover, in many cases the effects of the conflict on the attorney’s performance will not be discernible from the record. It is plain to me, therefore, that in some instances the defendant will be able to show there was an actual, relevant conflict, but be unable to show that it changed his attorney’s conduct.
It is possible that the standard articulated by the Court may not require a defendant to demonstrate that his attorney chose an action adverse to his interests because of a conflicting duty to another client. Arguably, if the attorney had to make decisions concerning his representation of the defendant under the constraint of inconsistent duties imposed by an actual conflict of interests, the adequacy of the representation was adversely affected. See ante, at 350 (defendant must show “that his counsel actively represented conflicting interests”). If that is the case, the Court’s view and mine may not be so far apart after all.
The determination that the defendant has made an informed choice of counsel would not, of course, establish a waiver that would prevent him from subsequently raising any claim of ineffective assistance of counsel based on a conflict of interest. The dangers of infringing the defendants’ privilege against self-incrimination and their right to maintain the confidentiality of the defense strategy foreclose the type of detailed inquiry necessary to establish a knowing and intelligent waiver. Furthermore, the inquiry would take place at such an early stage of the proceedings that not all possible conflicts might be anticipated. See Geer, Representation of Multiple Criminal Defendants: Conflicts of Interest and the Professional Responsibilities of the Defense Attorney, 62 Minn. L. Rev. 119 , 145 (1978).
The Court of Appeals cast its decision in terms of a “potential for conflict of interest,” United States ex rel. Sullivan v. Cuyler, 593 F. 2d 512, 522 (1979), and made no explicit statement that an actual conflict of interest existed. The court’s analysis was premised, however, on its conclusion that “[w]e have no basis on which to reject Peruto’s sworn admission that he injected improper considerations into the attorney-client relationship.” Ibid. This statement clearly demonstrates that the court found an actual, relevant conflict of interests.
“Conflict of interests” is a term that is often used and seldom defined. The American Bar Association’s usage, which has remained essentially unchanged since the promulgation of the Canons of Professional Ethics in 1908, is a fair statement of what is ordinarily meant by the term, and it is that meaning that I adopt here. The ABA Standards state that a lawyer should not undertake multiple representation “if the duty to one of the defendants may conflict with the duty to another.” ABA Project on Standards for Criminal Justice, Defense Function, Standard 4-3.5 (b) (App. Draft, 2d ed. 1979). The Code of Professional Responsibility forbids multiple representation “if it would be likely to involve [the lawyer] in representing differing interests,” unless the lawyer can adequately represent each client and obtains the informed consent of each. ABA Code of Professional Responsibility, Disciplinary Rule 5-105 (A)-(B) (1976). The Code of Professional Responsibility superseded the Canons of Professional Ethics (1937), which spoke of “conflicting interests” rather than “differing interests.” The term was defined in Canon 6: “[A] lawyer represents conflicting interests when, in behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.” The ABA materials do not, of course, define the constitutional standard. However, they are consistent with Glasser’s emphasis on the interests of the defendants, and the corresponding duties owed by the attorney, rather than on the empirical question of the effect of the conflict on the attorney’s performance. See Comment, Conflict of Interests in Multiple Representation of Criminal Co-defendants, 68 J. Crim. L. &C.226 (1977).
There is a possibility of conflict, then, if the interests of the defendants may diverge at some point so as to place the attorney under inconsistent duties. There is an actual, relevant conflict of interests if, during the course of the representation, the defendants’ interests do diverge with respect to a material factual or legal issue or to a course of action.
In Glosser, the defendant’s objection at trial to joint representation was that, as his lawyer put it, “Mr. Glasser feels that if I would represent Mr. Kretske the jury would get an idea that they are together. . . .” 315 U. S., at 68 . Whether the attorney’s performance was in fact affected by the joint representation is, of course, irrelevant to the merits of such a claim. While the Court did discuss the possibility that the lawyer’s failure to cross-examine prosecution witnesses fully or to object to the admission of certain evidence was the result of the joint representation, the possibility that the jury would assume that “birds of a feather flock to the same lawyer,” Greer, supra n. 1, at 136, was the only objection raised at trial and the Court plainly ¡considered it sufficient to require the appointment of separate counsel for Kretske.